Com. v. Everett, M. ( 2022 )

J-S15023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE EVERETT :
:
Appellant : No. 1719 EDA 2021
Appeal from the PCRA Order Entered July 1, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-1100801-1995
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 7, 2022
Maurice Everett (Appellant) appeals pro se from the order dismissing as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In June 1996, Appellant was convicted of second-degree murder,
robbery (two counts), aggravated assault, conspiracy, and possessing an
instrument of crime. In October 1996, the trial court sentenced Appellant to
life imprisonment on the murder conviction, and imposed lesser concurrent
sentences on the remaining charges. Appellant filed a direct appeal. On
August 27, 1997, this Court affirmed his judgment of sentence. See
Commonwealth v. Everett, 704 A.2d 690 (Pa. Super. 1997) (unpublished
memorandum). Appellant did not petition the Pennsylvania Supreme Court
for allowance of appeal.
J-S15023-22
Since 1998, Appellant has filed numerous unsuccessful petitions seeking
post-conviction relief. See Commonwealth Brief at 3 (“Over the next two
decades, [Appellant] filed numerous petitions for collateral relief in state and
federal court, all of which were denied.”). Appellant filed the instant petition
pro se on June 25, 2018, seeking relief based on newly discovered facts
obtained from his co-defendant, Nathan Riley (Riley). On March 17, 2021,
the PCRA court issued notice of intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907. The PCRA court dismissed the petition without a hearing
on July 1, 2021. Appellant timely appealed.1
____________________________________________
1 Appellant’s appeal was docketed August 18, 2021, more than 30 days after
the dismissal order. See Pa.R.A.P. 903 (appeal shall be filed within thirty days
of entry of order). On October 12, 2021, this Court issued a rule to show
cause why the appeal should not be quashed as untimely. Appellant
responded, “the COVID-19 pandemic and its chaotic affects are amplified
within the prison system,” and “the substantial rights of the Appellees will not
be affected were this court not to dismiss Appellant’s action.” This Court then
ordered Appellant to provide proof of the mailing date. Appellant responded
that he “placed his timely pro se Notice of Appeal in one of his allotted without
cost pre-paid postage envelopes”; “delivered his timely pro se Notice of Appeal
to prison authorities by depositing said timely pro se Notice of Appeal in the
prison mail collection box located on the unit where Appellant is currently
housed”; and “[o]nce Appellant delivered his timely pro se Notice of Appeal in
the aforementioned prison mail collection box it was forever out of Appellant’s
control and under the care, custody, and control of prison authorities[.]” On
December 15, 2021, the Court referred the timeliness issue to this merits
panel.
We conclude the appeal is timely under the prisoner mailbox rule, because the
notice of appeal is dated July 29, 2021, and Appellant averred he had no
control over the filing after he timely placed it in his unit’s mail collection box.
See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019)
(“the prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”).
-2-
J-S15023-22
Appellant presents one question for review:
1. Whether the PCRA court erred in denying [Appellant’s]
postconviction petition as untimely filed when [Appellant]
established that his [newly discovered facts] claim was within
the [plain language of the timeliness exception set forth at] 42
Pa.C.S.A. Section 9543(a)(2)(vi); 42 Pa.C.S.A. Section
9545(b)(1)(ii) and Section 9545(b)(2)?
Appellant’s Brief at iii.
Our review of the PCRA court’s order “is limited to examining whether
the PCRA court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d
1033, 1043 (Pa. Super. 2019) (citation omitted).
Like the PCRA court, we first consider the timeliness of Appellant’s
petition. The timeliness of a PCRA petition implicates jurisdiction; no court
has jurisdiction over an untimely petition. Commonwealth v. Williams, 35
A.3d 44, 52 (Pa. Super. 2011). Any PCRA petition, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). Judgment is final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3);
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). To
meet an exception to the time requirement, a petitioner must plead and prove:
(i) the failure to raise the claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
-3-
J-S15023-22
or laws of this Commonwealth or the Constitution or
laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition attempting to invoke an
exception must “be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Appellant claims he met the exception to the PCRA time-bar by pleading
newly discovered facts obtained from his co-defendant Riley, in the form of an
affidavit from Riley attesting to Riley not being informed of his rights prior to
being interrogated, and being offered favorable treatment from the
prosecution. See Appellant’s Brief at 2-5.
To obtain relief based on newly discovered facts, Appellant must
establish his proffered evidence “(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a different verdict if a
new trial were granted.” Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.
2008) (citation omitted).
-4-
J-S15023-22
Appellant contends he received “notice of the proffered evidence” on
June 14, 2018, and could not have known of the information sooner because
“the proffered evidence . . . was within the knowledge and control of Nathan
Riley.” Appellant’s Brief at 2. Appellant further claims “the proffered evidence
. . . could not have been discovered through reasonable diligence until June
14, 2018, . . . [because Appellant] has been continuously incarcerated, with
only limited assistance of counsel on unrelated claims since that time[.] Id.
at 3.
The Commonwealth argues Appellant did not meet the standard for the
newly discovered fact exception, because he failed
to describe any previous efforts to uncover this information,
instead asserting without explanation that he was unable to learn
the substance of Riley’s statement until he received the affidavits.
Riley was one of [Appellant’s] coconspirators. The two have known
each other for several decades, and [Appellant] does not offer any
reason why he could not have reached out to Riley in the many
years since the trial.
Additionally, some of the allegedly new information upon which
[Appellant] now relies was apparently revealed during Riley’s
sentencing hearing. Although defendant is not presumed to know
all publicly available information, he surely had reason to review
his coconspirator’s cases or to reach out to see whether anything
occurred during their proceedings that might affect his own case.
See Commonwealth v. Porter, 35 A.3d 4, 21–22 (Pa. 2012)
(finding lack of diligence where defendant failed to explain why he
could not have spoken to known witness in 21 years between trial
and discovery of new fact).
Commonwealth Brief at 7-8 (some citations omitted).
Upon review, we agree that Appellant failed to demonstrate he exercised
due diligence. We have explained:
-5-
J-S15023-22
Due diligence demands the petitioner take reasonable steps to
protect h[is] own interests. This standard, however, entails
neither perfect vigilance nor punctilious care, but rather it requires
reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for
collateral relief. Thus, the due diligence inquiry is fact-sensitive
and dependent upon the circumstances presented. A petitioner
must explain why []he could not have learned the new fact
earlier with the exercise of due diligence. This rule is strictly
enforced.
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (citations
and quotation marks omitted, emphasis added).
Here, Appellant’s general assertions of Riley’s “knowledge and control”
of the information, and Appellant being incarcerated with “limited assistance
of counsel,” do not excuse Appellant’s failure to explain what reasonable steps
he took, and why he could not have learned about the information earlier. As
the PCRA court explained:
Even if [Riley’s affidavit] substantiated the alleged facts,
[Appellant] failed to demonstrate that they were previously
unascertainable with the exercise of due diligence. According to
Riley, this information was revealed during his sentencing hearing
in 1995. [Appellant] failed to establish that he couldn’t have
attempted to either contact Riley or obtain a copy of his
sentencing transcript during the intervening decades between his
trial and his receipt of Riley’s correspondence.
PCRA Court Opinion, 8/18/21, at 1 (record citation omitted).
For the above reasons, we discern no error in the PCRA court’s dismissal
of Appellant’s untimely PCRA petition.
Order affirmed.
-6-
J-S15023-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2022
-7-